Thematic feature - implementation of the EU framework equal treatment Directive

This article examines the Dutch situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.

The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).

A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.

In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Dutch responses are set out below (along with the questions asked).

Existing situation

What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?

The General Act on Equal Treatment (Algemene wet gelijke behandeling, Awgb), which came into force in 1994, provides for non-discrimination on grounds of gender, belief, sexual orientation and race. At the time of the adoption of the EU framework equal treatment Directive, there was no specific legislation on disability and age discrimination in the labour market context and the government was in the process of progressing relevant laws through parliament (TN0102201S and TN0010201S).

State response

How has the state responded to the Directive since December 2000 in terms of:

• legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;

• broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.

The government's legislation on disability discrimination (see above) was adopted by parliament in 2001 (Handelingen 1e Kamer, nr.20, 1-4-2003, 618-646) (NL0202108F). The proposed legislation on age discrimination which was already before parliament differed from the EU framework Directive on two major points, and was thus revised, with the government submitting a new proposal to the Second Chamber of parliament on 18 December 2001. The earlier proposal listed a restrictive set of exceptions to the ban on age discrimination, while EU Directive takes a more open approach; the new proposal takes a middle way, with the listed exceptions acting only as examples. Furthermore, the Directive has a wider scope than the initial Dutch proposal in terms of the aspects of employment to which it applies (the Dutch draft was limited to recruitment and training); the new proposal follows the Directive's approach.

In summer 2003, the new proposed legislation on age discrimination is still before the Second Chamber. Furthermore, the government has drawn up a proposal aimed at integrating the framework Directive into the 1994 General Act on Equal Treatment, which will shortly be discussed in the Second Chamber. It is expected that this process will be completed by the end of 2003, meeting the deadline for implementation of the Directive. The government is considering consolidating the three relevant Acts (on general equal treatment, disability discrimination and age discrimination) into one law, in order to further transparency.

With regard to the policy response to the EU's anti-discrimination Action Programme, the Dutch authorities stress the importance of information provision and awareness-raising among the public. In cooperation with the social partners and non-governmental organisations (NGOs), a list of information needs and wishes is being drawn up. Several anti-discrimination information campaigns are being planned and carried out, including one conducted by the Ministry of Social Affairs, directed at works councils and companies of all sizes. Awareness-raising activity is planned with financial support from the EU Programme. See below under 'Impact' for details of monitoring arrangements.

Social partner response

What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?

In 1998, the social partners represented on the bipartite Labour Foundation (Stichting van de Arbeid, STAR) reiterated in a declaration (Verklaring Gelijke Behandeling op de Arbeidsmarkt) their 1993 agreement on equal treatment on the labour market. They explicitly subscribe to Article 1 of the Dutch Constitution, which states that: 'All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, or sex or on any other grounds whatsoever shall not be permitted.' The social partners added the further grounds of age, disability and sexual orientation.

In general, employers’ representatives support anti-discrimination legislation, which they see as a tool for changing company cultures and attitudes. The Confederation of Netherlands Industry and Employers (Vereniging Nederlandse Ondernemers-Nederlands Christelijk Werkgeversverbond, VNO-NCW) has some reservations about the proposed legislation on age (see above), which it has expressed to the Second Chamber (which will discuss the proposal in the autumn of 2003). In terms of social dialogue, employers' organisations contribute to government information campaigns on discrimination. Furthermore, VNO-NCW informs its own members, stressing the importance of this as the relevant legislation is difficult to understand for many of members (regulations on gender and age differ, for example).

The Dutch Trade Union Federation (Federatie Nederlandse Vakbeweging, FNV) is also in favour of anti-discrimination legislation, and underlines that clarity is important. In particular, the forthcoming legislation concerning age discrimination has prompted discussion among the social partners on cases where age distinctions may be justified and necessary.

Collective agreements only rarely set out a general principle of equal treatment. They more often include provisions on equal treatment in recruitment and training and on the protection of older employees or employees with a disability. Collective agreements are monitored in terms of their provisions on discrimination: in particular, gender, race, age and disability have been studied by the Labour Inspectorate (Arbeidsinspectie).

With regard to provisions on older employees, a 2001 Labour Inspectorate survey (Ouderenbeleid in CAO’s (2001) Een onderzoek naar afspraken tussen sociale partners met betrekking tot oudere werknemers, 2002) found that almost all of the 129 collective agreements examined included such measures. Most common were arrangements on reduced working hours for older worker, on a daily, weekly or on annual basis. In no agreements were older workers were excluded from training or bonuses. Compared with a previous survey in 1998, the number of provisions on early retirement had fallen, while provisions on flexible 'pre-pension' schemes had increased (NL9808194F). An autumn 2002 report (Najaarsrapportage Cao-afspraken 2002) by the Labour Inspectorate found that, of 125 collective agreements examined, 48 (covering 36% of employees) included provisions on employability and age, especially with regard to older employees. These is perceived as representing an 'age-conscious' policy.

With regard to workers with disabilities - under the terms of the Act on Reintegration of Partly Disabled People (Wet op reïntegratie arbeidsgehandicapten, REA) - the autumn 2002 Labour Inspectorate report found that, of the 125 collective agreements examined, 105 (84%) included provisions on their integration (50%) or reintegration (66%), or on adaptation of the workplace (10%). Most of the provisions take the form of statements of intent. The social partners also cooperate with the labour market authorities in a successful programme, REA-Actief, aimed at matching labour demand and supply for disabled workers.

Impact

What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?

As all the new anti-discrimination legislation in line with the EU framework Directive has yet to be fully implemented, it is too early to draw conclusions on its impact. Nevertheless, the authorities are keen to ensure that the legislation will have an impact. At present, disseminating information is seen as the most important activity. Collective agreements and company policies will be monitored closely, and priority will be given to compliance with the new laws.

With regard to monitoring and enforcement, in 1994 the government set up the Equal Treatment Commission (Commissie Gelijke Behandeling, CGB). The Commission's role is to promote and monitor compliance with the General Act on Equal Treatment, together with other specific amti-discrimination and equal treatment legislation. The Commission has the power to rule on claims, and can conduct investigations of its own accord and advise the government. Several NGOs - such as the Bureau on Age Discrimination (Expertisecentrum leeftijd en maatschappij, LBL), Bureau on Race Discrimination (Landelijk Bureau tegen rassendiscriminatie, LBR), Bureau on Gender Discrimination (E-quality) and Bureau against Discrimination due to Sexual Orientation (Cultureel Ontmoetingscentrum, COC) - can inform and advise the government and conduct research. The Labour Inspectorate monitors collective agreements on discrimination issues (see above). (Marianne Grünell, HSI)